The Draft Civil Code of the People's Republic of China: English Translation.

• Author: Bath, Vivienne
• Position: Book review

This book provides an English translation of a major drafting work carried out by Professor Liang Huixing and many distinguished colleagues from Chinese law schools. The work was commenced in 1998 and completed in 1999 The aim was to create a complete civil code ('the Draft Code') that would rewrite and replace various items of existing civil legislation, namely: the General Principles of Civil Law (GPCL) (1986); the Security Law (1995); the contract Law (1999); the Inheritance Law (1985); the Marriage Law (1980, later amended in 2001); and the Adoption Law (1991). The Draft Code also covers two areas of law that were later enacted separately: the Real Rights Law (2007) and the Tort Liability Law (2009).

The Draft Code represents a major effort by an accomplished group of Chinese legal academics to clarify and consolidate China's civil law regime. The foreword by Liang Huixing sets out the progress of the work and an explanation of the structure that was adopted, including a summary of the sources (such as the Dutch Civil Code) on which the drafters relied. The final product is a major accomplishment. It was not, however, adopted by the National People's Congress. Initially, it was followed by a draft civil code prepared by the Legal Affairs Commission of the National People's Congress, which reorganised the chapter on family law and added a chapter on the application of laws to foreign related civil matters. (1) Han Shiyuan suggests that the reason for this was because the initial draft did not give sufficient attention to state-owned assets or collectively-owned assets. Indeed, the enactment of the Real Rights Law--sometimes referred to as the 'Property Law'--did not take place until 2007 due to objections that it granted too much protection to private property at the expense of state-owned assets. (2)

The National People's Congress has not adopted either version of the complete civil code. Instead, the decision was taken to complete China's civil system by retaining existing laws, such as the Contract Law, the inheritance Law and the GPCL, which were left in place untouched; and to add the Real Rights Law, the Tort Liability Law and the Law on Application of Laws to Foreign related Civil. Matters (2010), which were enacted separately. There is clearly a strong argument for the overhaul and re-enactment of pieces of legislation with a common theme which were passed over a sustained period of time, particularly in the case of laws such as...